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Poster: kozmikyak Date: Feb 2, 2006 3:23am
Forum: etree Subject: Legality of posting live shows with cover songs

I've searched forums here and the Internet and I've not found any evidence to convince me that I'm allowed to post cover song performances by my band, despite complaints by reviewers.

To clarify, we record entire shows and post them by tracks. I've initially cut out the tracks that contain cover songs because a quick Internet search shows me that archive.org is being harassed about this issue right now, and I see nothing explicitly allowing it.

What I'd like is two bits of information:

* official word from archive.org explaining their policy on the matter
* if archive.org allows it, a pointer to outside information that explains the legality in explicit detail

I already emailed staff at archive.org and have gotten no reply. Perhaps they're being instructed to remain silent on the matter to avoid rocking the boat?

Unless/until that happens, I can't in good conscience post cover songs. Just because everyone else is getting away with it doesn't mean that they will continue to get away with it, and we may even be causing archive.org legal problems because of it.

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Poster: patkelley Date: Feb 2, 2006 12:17pm
Forum: etree Subject: Re: Legality of posting live shows with cover songs

I think you'll be OK posting covers on here. No $$ exchanges hand and the recording qualities are inferior. Copyright laws are weird, but they all have to do with profit-motive.

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Poster: JasperBass Date: Feb 2, 2006 3:39am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

My understanding has always been that if no profit is being made on the recordings then there is no problem.

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Poster: greenone Date: Feb 2, 2006 4:46am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

As far as the performance itself, the venues pay regular charges to ASCAP/BMI to cover royalties on songs played in their establishment. So the original authors of those songs have already been compensated for that particular performance.

However, this would seem to indicate that mechanical licenses are necessary *unless* an agreement has been reached with the song's publisher:
http://www.harryfox.com/public/mechanicalLicense.jsp

However #2, remember that little checkbox you check when you upload songs that says, basically, that you have all rights to make these files public and are not violating anyone's copyright by doing so? I think that puts the onus on the uploader rather than the site itself. There's also a mechanism for copyright holders to have their works removed if they do not approve of them being hosted here - it's part of the Terms of Use: http://www.archive.org/about/terms.php

So...if you're concerned about it, then leaving off the cover tunes is the safest thing to do. However, I have to think that if we were causing archive.org an undue amount of legal problems, someone would make a statement about it. I certainly see your point and think it's a valid one, but I personally don't plan on changing what I've been doing up until now.

--Dave

--Dave

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Poster: kozmikyak Date: Feb 3, 2006 3:59am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

I guess I came off as trying to tell other people what to do. I didn't mean to come off that way at all, just trying to understand a complex issue. I think we may in the end release cover tracks, after I get a chance to sit down with legal counsel and analyze my level of risk. I certainly feel it's moral to release them so it's entirely selfish ass-covering on my part to be worried about it.

By the way, the band is Enchanted Ape. We have always recorded lots of live shows but the equipment was substandard and the results weren't even good enough to fairly evaluate the band. We recently upgraded so that the recording gear is no longer the weakest link--we are.

The two shows posted are actually quite rough, but we're believers in the idea that anything we're willing to play in public we should be willing to submit to the widest possible audience for evaluation. Even if nobody wants to download it, the idea that everything is out there for evaluation is a real motivator towards quality.

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Poster: davidbarfield Date: Feb 4, 2006 6:27am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

i did not get the sense that you were telling anyone what to do.

once you are done talking to your lawyers, would you post what (in synopsis form) they said? i've been kicking this around with a friend (laywer-scum) of mine for years--we've never been able to find any cases/suits that speak to this issue directly. of course we both have other things to do, so we're not on the case/s on a day to day basis. the only thing we've got to go on, is interpreting the copyright statute. but of course, cases that have been heard are different than assumptions about how those cases would go, yes?

i'm under the working assumption that as the artist who performed the cover, you are the only one who can tell archive to take it down. wondering if that's right or not...?

curious if you are a taper friendly band? say if i were to record you -- and you played a few covers ... would you tell me to only upload your songs? or do you think that because the upoad comes from you, you bear more responsibility? because it's a sbd rather than an open air mic recording? is there a difference (aside from the obvious fact that mine's gonna sound a hell of a lot better... ; ) ? dunno for sure -- i have my leanings though....





This post was modified by davidbarfield on 2006-02-04 14:27:31

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Poster: greenone Date: Feb 4, 2006 12:16pm
Forum: etree Subject: Re: Legality of posting live shows with cover songs

i'm under the working assumption that as the artist who performed the cover, you are the only one who can tell archive to take it down. wondering if that's right or not...?

I have a hard time believing that the original author of the song would have no legal say over whether a cover of his or her song could be taken down from this site. However, my hunch is that if either the performer OR the author asked the LMA, they'd take it down out of courtesy.

I'd actually be interested in what the lawyer-types have to say about this, too. Well, check that - I'm interested only if it's good news. If it's not, I don't want to hear it. ;)

--Dave

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Poster: davidbarfield Date: Feb 4, 2006 1:39pm
Forum: etree Subject: Re: Legality of posting live shows with cover songs

"I have a hard time believing that the original author of the song would have no legal say over whether a cover of his or her song could be taken down from this site. However, my hunch is that if either the performer OR the author asked the LMA, they'd take it down out of courtesy."

it's acutally the publisher of the said song. they've been paid already--by the venue the song was playing in, and by whatever membership/s the covering artist has paid in dues to ascap or associations (i think this is right).

if a performer did not want a song they played to be hosted here, that's their right regardless of their reasoning. if the estate of buddy holly (or whoever holds the publishing rights) asked LMA to delete every n.f.a. that appears on this site, and LMA honored the demand, it would be because that is the culture of this site, not a legal authority. good thing i don't run such a site, 'cause if i did, and such a thing happened, i'd say: so sue me!

someone trying to delete songs under such circumstances would have a claim if this site was a pay-for-membership org. or like itunes music store or another similar commercial enterprise. and the site/company was refusing to pay royalties--kinda hard to imagine a scenario like that though.

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Poster: greenone Date: Feb 5, 2006 3:16am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

it's acutally the publisher of the said song. they've been paid already--by the venue the song was playing in, and by whatever membership/s the covering artist has paid in dues to ascap or associations (i think this is right).

My bad, that's what I meant - publisher, not author. Still, like you said, I think if anyone with any kind of association with the song (author, publisher, artist, performer, etc.) asked, the LMA would likely take it down.

someone trying to delete songs under such circumstances would have a claim if this site was a pay-for-membership org. or like itunes music store or another similar commercial enterprise.

I'm not so sure about that. One of the links above says that even if you're giving away the song for free, you need a mechanical license or some sort of agreement with the author/publisher if the song is not yours to begin with. Likely because free downloads is pretty hard competition for pay-per-download!

Of course, all typical disclaimers apply. I'm not a lawyer, I just know enough to be dangerous. Time for another sip from the Pierian Spring... ;)

--Dave

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Poster: midnight sun Date: Feb 5, 2006 8:39am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

"...so sue me..." ?

My ISP charges me $10.00 a gig for anything over 10 gigs I d/l and u/l a month. They hide behind the fact they have a monopoly in this part of the world (so far) and people don't have the time or money to fight their ignorance.
Courtesy is a word these people are not FAMILIar with.

When someone says "so sue me..." I say they're a person not worth knowing.

This post was modified by midnight sun on 2006-02-05 16:39:53

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Poster: davidbarfield Date: Feb 8, 2006 1:34am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

"Courtesy is a word these people are not FAMILIar with.
When someone says "so sue me..." I say they're a person not worth knowing."

verizon? huh? your isp? wha?
sorry lost ya. but if the refence was > my way, that's cool because it's likely that we've never met. so we're all set.

but instead of scheit-kicking around here for an argument, perhaps you can pick up and move to philly? they've got free wireless -- city-wide from what i hear.

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Poster: Purple Gel Date: Feb 2, 2006 8:06am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

Kozmikyak writes:
" I've initially cut out the tracks that contain cover songs because a quick Internet search shows me that archive.org is being harassed about this issue right now, and I see nothing explicitly allowing it."

Kozmikyak...
I think you may be reffering to comments made by Bob Weir in an interview after GDP pulled their sbds from LMA over Thanksgiving. In effect he tried to justify the action by stating that he thought there were copyright issues with allowing people to copy shows that featured cover songs. I think most people here would agree that this was merely a CYA attempt by him to deflect any bad mojo from GDP over this issue, and GDP subsequently reversed their decision allowing Auds to be downloaded and sbds to be streamed, so I think you can see that even GDP realized that this argument couldn't hold water. As a previous poster stated, there are literally thousands of shows on this site, including almost every GD shows that feature at least one cover tune. As long as you are comfortable with it, I would say go for it!

This post was modified by Purple Gel on 2006-02-02 16:02:53

This post was modified by Purple Gel on 2006-02-02 16:04:27

This post was modified by Purple Gel on 2006-02-02 16:06:15

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Poster: kozmikyak Date: Feb 2, 2006 8:09am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

Thanks for the input.

This is my personal summary of the situation: the people that say posting covers is all right give me emotional arguments like "I don't think there's a problem with it if there's no profit involved" or "everyone else is doing it". The people that say it isn't all right are giving me links to legal documentation, however tenuous. In addition, the people that say it isn't all right point out that I'm the one who checked the box saying I had rights to distribute, therefore I'm the one who could possibly get sued if there's a problem.

Final assessment: Despite the complaints of reviewers, and my own band members, as long as I'm in charge of uploading shows I need to delete cover songs to "cover" my own ass. Others may do as they please at their own risk, but I feel comfortable in my decision.

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Poster: Purple Gel Date: Feb 2, 2006 8:28am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

You gotta do what you are most comfortable with, and I don't think anyone will fault you for being cautious. I applaud any band that has the vision to realize that making their live music available is a good way to get the word out about your music and to get it heard. What's the name of your band? i would love to give it a listen ( I didn't see Kozmikyak listed, so i assume there may be another name)

This post was modified by Purple Gel on 2006-02-02 16:26:55

This post was modified by Purple Gel on 2006-02-02 16:28:45

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Poster: Diana Hamilton Date: Feb 2, 2006 10:11pm
Forum: etree Subject: Re: Enchanted Ape show pointer

I think this may be the show in question, where another patron did note the lack?
http://www.archive.org/audio/etree-details-db.php?id=33390

We do have other cases where bands choose to make only selections from shows available, for various reasons. While we'd like to have complete shows up whenever we can, through the band's generosity we can at least have *something* here in this case.

From a glass-half-full perspective, IMO originals are where a band gets to show their own abilities on all levels. :) And in this specific case, if anyone wants to hear what "lead cello" sounds like on rockin' original tunes, give a listen!

This post was modified by Diana Hamilton on 2006-02-03 06:11:19

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Poster: nagdot Date: Feb 3, 2006 4:57am
Forum: etree Subject: Re: Enchanted Ape show pointer

nice sounding band here diana ty for the turn on

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Poster: phishphan Date: Feb 3, 2006 1:31am
Forum: etree Subject: Re: Enchanted Ape show pointer

Diana,

so what is the final word. I was unaware of any change in policy on the archive regarding cover songs during a show. It seems that if bands are not allowed to post cover songs on the archive as part of their collection for the show, that there will be a lot (a lot) of tracks needing to be removed...



-=nick

This post was modified by phishphan on 2006-02-03 09:31:45

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Poster: Diana Hamilton Date: Feb 3, 2006 2:11am
Forum: etree Subject: Re: Enchanted Ape show pointer

I have no "word" to offer on anything, but was pointing out that here we have just another case of a band choosing to let material be in the LMA to the extent they wish.

For bands with legal questions, I would suggest they contact their own legal counsel for advice.

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Poster: phishphan Date: Feb 3, 2006 2:45am
Forum: etree Subject: Re: Enchanted Ape show pointer

so basically, don't rock the boat...

but its not against the "rules" to post my band's show including covers?

thanks

-=nick

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Poster: Brad Leblanc Date: Feb 4, 2006 4:02am
Forum: etree Subject: Re: Enchanted Ape show pointer

There are no rules forbidding it, but like Diana said - feel free to consult with your lawyer if you are concerned.

This post was modified by Brad Leblanc on 2006-02-04 12:02:37

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Poster: cousinkix1953 Date: Feb 2, 2006 9:45am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

The whole thing became moot, once the Bob Weir claim failed to hold water in the glass. Grateful Dead productions has first class lawyers. Common sense tells us, that their Chuck Berry, Johnny Cash, Rolling stones etc. covers wouldn't be here, anymore in any form, if a copyright holder complained. And they got paid; when the boys played their songs on stage.

Several veteran artists post covers here. They's certainly know the copyright laws after 20, 30 and 40 years in the business...

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Poster: davidbarfield Date: Feb 2, 2006 5:09pm
Forum: etree Subject: Re: Legality of posting live shows with cover songs

"This is my personal summary of the situation: the people that say posting covers is all right give me emotional arguments like "I don't think there's a problem with it if there's no profit involved" or "everyone else is doing it". The people that say it isn't all right are giving me links to legal documentation, however tenuous. In addition, the people that say it isn't all right point out that I'm the one who checked the box saying I had rights to distribute, therefore I'm the one who could possibly get sued if there's a problem"


non-emotionally: the artists have been paid--or rather the publishers have been--other remarks have made that point here... but regardless if you look at the federal copyright statutes, you'll see the process.

if band x decides to make their old concerts commercially available--and those concerts contained between 4 > 7 covers per show and band x played hundreds of shows and a large amount of those shows were being scheduled for release AND the research suggested that each show could sell perhaps 10k copies....that's a lot of money to be paid. if there was a place where fans could get that same (rather similar) recording for free, that *place* would be seen by the bean counters as competition that needs to go.

that's what happened here recently--weir was off base. nothing illegal about this. if the riaa could make all of this illegal they would.

you're right though, it's not about profit, it's about ALL of the profit.

This post was modified by davidbarfield on 2006-02-03 01:08:53

This post was modified by davidbarfield on 2006-02-03 01:09:36

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Poster: PrAz Date: Feb 3, 2006 12:55am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

after reading all the posts I thought I would do a little reasearch and found this link:

http://www.cleverjoe.com/articles/music_copyright_law.html

hopefully it will help settle this argument, and btw, what is Wier's final stand on covering songs cause I thought GD usually regularly covered Marvin Gaye's 'Dancing in the Street' (as heard on their LMA posts and Dick's Picks Vol. 3 and I have never heard anyone complain about that)

oh, and kozmikyak, I must say, from the shows your band has posted here you are guys play well. kudos

This post was modified by PrAz on 2006-02-03 08:55:19

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Poster: bluedevil Date: Feb 3, 2006 2:12am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

Marvin Gaye? You mean Martha and the Vandellas.

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Poster: PrAz Date: Feb 3, 2006 2:34am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

no marvin gaye was the composer

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Poster: wheel75 Date: Feb 3, 2006 2:32am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

More accurately, the composer is: William Stevenson / Marvin Gaye / Ivy Joe Hunter

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Poster: bluedevil Date: Feb 3, 2006 2:36am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

I stand corrected. By the way, didn't Hall and Oates do What's Going On with the Dead at MSG for the Rainforest Benefit back in the 80s? I have a vague recollection of the same - as well as Suzanne Vega covering Robyn Hitchcock's "Chinese Bones" (right title?). If someone can confirm this flashback, it would help.

Also, I admit to being disappointed they didn't do She's Gone into He's Gone (or vice-versa). Would have been too funny.

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Poster: Tyler Date: Feb 2, 2006 7:41am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

a quick Internet search shows me that archive.org is being harassed about this issue right now, and I see nothing explicitly allowing it.


i'm not aware of any 'harassment' that is going on about the topic, neither present or past. the topic has been brought up from time to time by users, but never any legal reps of say, michael jackson, who were upset at / going after the archive because there is a show on here where the band covered 'billie jean'. Could you provide links / text for your statement?

and yes, when a venue pays it's ASCAP/BMI license, the people who get on stage there can legally perform copyrighted works of others (like say 'abby road') because the owner of the original works have been paid something.

as far as taping / hosting of a show that had a cover song it ... I am not a lawyer, but if a copywrite holder came and said "this is my song, I don't want a live version of it out there" then the LMA would probably take the song down.

In your case, if you want to just cut it out of your own file set / performance, that is fine .. that way you don't have any bothers / worries. But honestly, I don't think it is a problem at all. there are litterally hundreds of shows on here that have at least one cover song performed in it. don't worry mate.

tyler

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Poster: kozmikyak Date: Feb 2, 2006 8:03am
Forum: etree Subject: Re: Legality of posting live shows with cover songs

There was another post on here in December speculating that some of the issues with the change in status of Dead shows is due to lack of rights to distribute covers.